John Durso, Esq. Nixon Peabody LLP

We do background checks on new employees. But now there’s word we’ll be getting sued because a relatively new nurse aide allegedly improperly touched certain residents. How can we avoid a potentially nightmarish sexual assault scenario we knew nothing about, nor could have foreseen?

An employer can be held responsible for the acts of its employees if the acts occur within the scope of their employment. However, a nursing home in your scenario may preempt liability by adopting the following practices.

· First, ensure your facility is in compliance with the state and federal laws that require criminal background checks for nursing home employees. Adherence to these requirements should protect you from any claims of “negligent hiring.”

· Second, your employee handbook should contain a policy prohibiting all employees from committing any form of abuse against residents. The policy should encompass all forms of abuse — physical, sexual, verbal, psychological and emotional abuse, as well as neglect. Employees must be subject to discipline, including termination, for any such violation.

· Third, notice of any such resident abuse should trigger a two-part reporting protocol. Report the alleged offense to the governmental body — state or federal — that licenses your facility, and then fully cooperate with the surveyors in their audit. If the alleged abuse is criminal (e.g. sexual abuse, battery), then report the offense to local police and support their investigation.

Assuming that you had no notice of the alleged abuse, and your facility maintained these best practices, you will probably avoid liability.

Please send your legal questions to John Durso at [email protected]